PLJ 2018 Cr.C. (Lahore) 169
Present: Tariq Saleem Sheikh, J.
MUHAMMAD FALAK SHER--Petitioner
versus
STATE etc.--Respondents
Crl. Revision No. 25977 of 2017, decided on 30.5.2017.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 439--Criminal Revision--Petitioner’s application for his re-examination was dismissed--Power of Court with regard to summoning of a witness or to recall or re-examine any witness already examined--While deciding a case which involved recalling of a witness by Court for re-examination in a civil suit--Held: Hon’ble Supreme Court of Pakistan held that Civil Procedure Code (CPC) consists of two parts, procedural and substantive--Procedural part consists of those provisions which are meant for process of litigation, i.e. mechanism for proceeding with trial--Excluding those provisions, rest is all substantive law--More particularly it held that provisions relating to production of evidence, examination of witnesses, their cross-examination and re- examination contained in CPC read with relevant provisions of QSO are part of substantive law--They are not procedural and thus cannot be regarded as mere “technicalities”--Section 540, Cr.P.C. and Article 133 of QSO are substantive law which confer valuable rights on parties and cannot be dubbed as technicalities--From above it follows that Court may at any stage of proceedings on its own or on request of a party recall a witness for re-examination, if interest of justice so require, to get explanation or for removal of doubt or ambiguity with respect to a fact--However, such permission cannot be given to any party to fill in lacunae in case which may cause prejudice to other party--Court may also permit introduction of a new matter in re-examination if that is necessary for just decision of case--In such eventuality adverse party has right to cross-examine witness after re-examination--Petitioner has also sought permission to tender in evidence application that he submitted to police for registration of F.I.R.--Perusal of record shows that he specifically deposed about making of this application in his examination-in-chief when he appeared as PW but did not get it exhibited--Inasmuch as said application is also vital for just decision of case, prosecution should not be made to suffer owing to omission which has been caused due to inadvertence or sheer negligence--One of reasons given by trial Court in support of its impugned Order is that Petitioner had made request at a very belated stage--This is hardly a legal ground for rejection of petitioner--Revision was allowed. [Pp. 172, 174 & 175] A, B, C & D
PLD 2014 SC 89, 2013 AIR SC (Cri) 1746, PLD 1996 Dacca 422, 2002 CLC 1989 & AIR 2013 SC (Cri) 1564, ref.
Mr. Umar Hayat Bhatti, Advocate for Petitioner.
Ch. Muhammad Imran Raza Chadhar, Advocate for Respondent No. 3.
Mr. Nasir-ud-Din Khan Nayyer, Advocate for Respondent
No. 6.
Malik Azhar Hussain Awan, D.P.G. for State.
Date of hearing: 30.5.2017
Order
This Criminal Revision is directed against Order dated 06.05.2017 passed by the learned Additional Sessions Judge, Sangla Hill, whereby the Petitioner’s application for his re-examination was dismissed.
2. Brief facts of the case are that the Petitioner got F.I.R. No. 340/2012 dated 02-08-2012 registered at Police Station Saddar, Sangla Hill, District Nankana, against Respondents No. 3 to 9 for offences under Sections 302/324/148/149/109, PPC. Dissatisfied with the police investigation, he subsequently filed a private complaint which is pending. The Petitioner/Complainant appeared as PW-2 and recorded his testimony whereafter other witnesses were examined and now the trial is nearing completion. On 25-04-2017, the Petitioner filed an application for his re-examination on the ground that while recording his evidence on 25-04-2015 he inadvertently omitted to depose about the supplementary statement which he made to the Investigation Officer on 03-08-2012 regarding recovery of blood-stained earth underneath the bodies of deceased Sajjad Anwar and Naseer Ahmad and injured Fazal Mehmood and Faisal alias Kakka as well as the recovery of empties and clothes of injured Fazal Mahmood. He also sought permission to adduce in evidence the application that he made to the police for registration of F.I.R. on 02-08-2012 which too was not exhibited due to oversight. The learned Additional Sessions Judge dismissed the application in question vide Order dated 06-05-2017. Hence, this petition.
3. Learned counsel for the Petitioner contended that it was a case in which two persons lost their lives and two were seriously injured. Permission for re-examination of the Petitioner as also for production of the aforementioned application that he made to the police for registration of F.I.R. was essential for a fair and just decision of the case. He prayed that the instant petition may be accepted and the impugned order may be set aside.
4. On the other hand, learned Deputy Prosecutor General and the learned counsel for Respondents No. 3 & 9 vehemently opposed this petition. They argued that the Petitioner seeks to fill in lacunae in the prosecution case which could not be permitted. If this petition is accepted it would cause serious prejudice to the accused persons. They prayed for its dismissal.
5. Arguments heard. Record perused.
6. In order to appreciate the rival contentions of the parties, it would be necessary to refer to Section 540 of the Code of Criminal Procedure, 1898, and Article 133 of the Qanoon-e-Shahadat Order, 1984 (the “QSO”). The same are reproduced hereunder for ready reference:
Section 540, Cr.P.C.
540. Power to summon material witness or examine persons present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.
Article 133,Qanoon-e-Shahadat Order, 1984
133. Order of examination. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined.
(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross- examination and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.
7. In “Muhammad Asghar v. Hussain Ahmad and others” (PLD 2014 SC 89), while deciding a case which involved recalling of a witness by Court for re-examination in a civil suit, the Hon’ble Supreme Court of Pakistan held that the Civil Procedure Code (CPC) consists of two parts, procedural and substantive. The procedural part consists of those provisions which are meant for the process of litigation, i.e. the mechanism for proceeding with the trial. Excluding those provisions, the rest is all substantive law. More particularly it held that the provisions relating to production of evidence, examination of witnesses, their cross-examination and re- examination contained in the CPC read with the relevant provisions of the QSO are part of substantive law. They are not procedural and thus cannot be regarded as mere “technicalities”. The law laid down in Muhammad Asghar’s case applies with equal force to the Criminal Procedure Code, 1898. Section 540, Cr.P.C. and Article 133 of the QSO are substantive law which confer valuable rights on the parties and cannot be dubbed as technicalities.
8. Section 311 of the Indian Code of Criminal Procedure and Section 138 of the Indian Evidence Act are pari materia to our Section 540, Cr.P.C. and Article 133 QSO. In “Rajaram Prasad Yadav v. State of Bihar and another” [2013 AIR SC (Cri) 1746], the Supreme Court of India held that the said Sections confer wide powers on the Courts with regard to summoning of a witness or to recall or re-examine any witness already examined. All that is required is that the Court should be satisfied that his evidence is essential for the just decision of the case. It explained:
“Therefore, a reading of Section 311 Criminal Procedure Code and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Criminal Procedure Code. It is, therefore, imperative that the invocation of Section 311 Criminal Procedure Code and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.”
9. In “Watir Ullah and others v. The State” (PLD 1966 Dacca 422), the Court had the occasion to dilate on the issue. Referring to Sections 137 and 138 of the Evidence Act, 1872 (which were pari materia to Articles 132 and 133 of the QSO), it observed:
“Our attention has been drawn in this connection to the provisions of Sections 137 and 138 of the Evidence Act and more particularly, to latter section. Section 138 provides inter alia that after examination-in-chief and cross-examination of a witness he may be re-examined by the party calling him and he re-examination shall be directed to the explanation of matters referred to in cross-examination and if new matter is, by permission to the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.’ Thus ordinarily re-examination should relate to explanation and clarification of the matters brought out in cross-examination but new matters can be introduced in re-examination with the leave of the Court.”
10. In “Mst. Sami and 8 others v. Mst. Firdos Begum and 15 others” (2002 CLC 1989), a learned Division Bench of the Sindh High Court further elaborated the object and scope of re-examination. It said:
“The object of re-examination is clear an ambiguity which has arisen upon cross-examination. It does not provide a chance to the party for making improvement in the examination-in-chief. In fact, the re-examination is directed to the explanation of the matter referred to the cross-examination. Thus, the condition essential for re-examination is the existence of some ambiguity which has crept into the examination-in-chief by the embarrassing question asked in cross-examination.”
As per Merriam-Webster Dictionary, ambiguity means “something that does not have a single clear meaning: something that is ambiguous.”
11. From the above it follows that the Court may at any stage of the proceedings on its own or on the request of a party recall a witness for re-examination, if the interest of justice so require, to get explanation or for removal of doubt or ambiguity with respect to a fact. However, such permission cannot be given to any party to fill in lacunae in the case which may cause prejudice to the other party. The Court may also permit introduction of a new matter in re-examination if that is necessary for the just decision of the case. In such eventuality the adverse party has the right to cross-examine the witness after re-examination.
12. In the instant case, it is observed, the Investigation Officer Arshad Ali/S.I. appeared as CW-2 and recorded his statement that during the course of investigation of F.I.R. No. 340/2012 supra, vide Ex.PE and Ex.PF, he collected blood-stained earth from underneath the dead bodies of both the deceased persons (Sajjad Anwar and Naseer Ahmad) and, vide Ex.PG and Ex.PH, from the place where Fazal Mahmood and Faisal alias Kaka were injured. Besides, he also collected empties from the spot and took the same into possession vide Recovery Memo Ex.PD. Perusal of the record shows that the said Recovery Memos were attested by Petitioner Falak Sher (PW-2) and Masood Ahmad (PW-3). In his testimony Masood Ahmad (PW-3) deposed that the aforementioned recoveries were made in his presence and he signed the Recovery Memos alongwith Petitioner Falak Sher (PW-2) as a marginal witness. However, Petitioner Falak Sher missed out this aspect of the matter when he recorded his statement as PW-2 statedly owing to inadvertence. Inasmuch as the Recovery Memos have already been exhibited, no prejudice would be caused to Respondents No. 3 to 9 if the Petitioner is permitted to depose in respect thereof. It would rather promote the ends of justice and enable the Court in reaching a just decision. Obviously, this would be subject to the right of Respondents No. 3 to 9 to cross-examine the witness as envisaged in Article 133(3) of the QSO.
13. Petitioner Falak Sher has also sought permission to tender in evidence the application that he submitted to the police for registration of F.I.R. on 02-08-2012. Perusal of the record shows that he specifically deposed about making of this application in his examination-in-chief when he appeared as PW-2 but did not get it exhibited. Inasmuch as the said application is also vital for the just decision of the case, the prosecution should not be made to suffer owing to the omission which has been caused due to inadvertence or sheer negligence.
14. One of the reasons given by the learned trial Court in support of its impugned Order is that the Petitioner had made the request at a very belated stage. This is hardly a legal ground for rejection of the Petitioner. In “Natasha Singh v. CBI (State)” [AIR 2013 SC (Cri) 1564], the Supreme Court of India held:
“The very use of words such as ‘any Court’, ‘at any stage’, or ‘or any enquiry’, trial or other proceedings, ‘any person’ and ‘any such person’ [Read: in Section 540, Cr.P.C.] clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should, therefore, be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case… Fair trial is the main object of criminal procedure, and it is the duty of the Court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right.”
15. In view of the foregoing, this petition is allowed and the impugned Order dated 06-05-2017 is set aside.
(A.A.K.) Revision allowed
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